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Margaret Stock, a member of the Federalist Society, has a thoughtful analysis of the problems with any change to the current rules of birthright citizenship at Talking Justice. Stock is a Lieutenant Colonel in the Military Police Corps, U.S. Army Reserve; and an Associate Professor in the Department of Social Sciences at the U.S. Military Academy. The piece concludes that

"Even if one accepts that a foreigner in the United States only temporarily or illegally is not “subject to the jurisdiction” of the United States—an interpretation that the Departments of Justice and Homeland Security would dispute, as it might deprive them of authority to prosecute and expel such persons—the policy implications of changing the current interpretation of the Fourteenth Amendment are significant. Without the current, simple interpretation of the Fourteenth Amendment, the government would have to adjudicate the citizenship status of every child born within US borders based on the exceedingly complex rules of derivative citizenship, or citizenship by blood. Currently, DHS takes more than a year to make such determinations, and the process is expensive and fraught with error. As a result of the law’s complexity, DHS often takes into custody and attempts to deport many derivative citizens on the mistaken notion that they are foreigners. DHS keeps no statistical records on how many citizens it has erroneously tried to deport, but news accounts indicate that the numbers are substantial. A new interpretation of the Fourteenth Amendment will increase these numbers substantially. Thus, changing the longstanding interpretation of the Fourteenth Amendment may in the end only benefit immigration lawyers, while adding yet another layer of complexity to the lives of ordinary Americans who seek driver’s licenses, passports, mortgage loans, or even the opportunity to vote in the next state or federal election."

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Comments

A birth certificate, contrary to most peoples belief, does not necessarily make you a citizen. The privilege of citizenship is required to be natural and lawful and not be acquired by virtue of chance or circumstance. Birthright citizenship only applies to persons who are lawfully present in the United States.

Article 1 section 8 of the U.S. Constitution states: "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

"To establish a uniform rule of naturalization"

The tenth Amendment states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. "

Article 1 section 8 delegates the power of citizenship or naturalization to the U.S. Government and not to the states.

The fourteenth amendment addresses birthright citizenship along with various other civil rights: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

In the fourteenth amendment you will clearly notice a theme. It speaks to, or addresses the person. The phrase "and subject to the jurisdiction thereof," taken in context means A "person" or entity ruled over by another, especially a monarch or state authority: (i.e. a British "subject", a term concerning British nationality; )

Many have interpreted this to mean something else. A birth certificate is merely a affidavit stating you were born. it does not grant citizenship. To qualify as a citizen you have to look to United States Code TITLE 8, CHAPTER 12, SUBCHAPTER III, Part I 1401 (which speaks to the U.S.military as well) and various federal immigration and naturalization laws.

The Fourteenth Amendments citizenship clause is not a de-facto right for aliens or foreign nationals to obtain citizenship; on the contrary, it implies subject to the jurisdiction thereof. In the U.S. to become a citizen, you swear a oath of alegiance and renounce your citizenship of your country of origin. Thats the law.

The United States has always, as a matter of law, considered new arrivals "subjects" of the country from which they owed their allegiance. As a matter of law, new arrivals are recognized as bearing the allegiance of the country of their origin. No more is this evident then with the recording of the certificate of intent to become a citizen of the United States:

Physical presence on U.S. soil subjects the person to laws of behavior enacted by society, it does not address international or U.S. jurisdiction or allegiance nor does it give the state the right to grant a citizenship or a de-facto citizenship with out permission of the United State Government whos jurisdiction over citizenship and naturalization is supreme. (see article 1 section 8)

No more can a foreigner become a citizen of their own will by renunciation without consent of the United States, their children born on United States soil can not renounce their citizenship without the same consent

Further, if a birth certificate granted citizenship the states would be violating federal law and international law. A birth certificate can not create a de-facto citizenship or a expatriation of a foreign nationals citizenship. Think of it as a woman that needed to travel abroad for some business. She is a citizens of the U.S. She is pregnant and about to give birth. She gives birth in the United Kingdom. Is the child British? Of coarse not. The child is not a British subject however, the British Government issued a British Birth Certificate. Does this expatriate the child from being a U.S. citizen? Again, the answer is no. This British birth certificates attest to the fact the woman bearing this child is the legal parent.

You are not a citizen of the U.S. because you hold a birth certificate from a state or several states although people are lead to believe this. States can not grant citizenship without a statute explicitly granting such privileges to be extended to the State from the Federal Government. You can not expatriate a foreign nationals citizenship at birth unless you have permission from the Federal Government, a United States treaty, or by a United States Court of Law.

Again, the privilege of citizenship is required to be natural and lawful and not be acquired by virtue of chance or circumstance. The United States Supreme Court has never ruled on State issued Birth certificates granting citizenship but if it ever does, it will confirm that granting citizenship, by birth or otherwise, is a function exclusive to the Federal Government. and United States statute. Article 1 section 8, the tenth and fourteenth amendment still apply and are valid. "

Posted by: cole | Jul 23, 2008 6:25:16 PM

"Birthright citizenship only applies to persons who are lawfully present in the United States." This is patently wrong. First of all, it doesn't apply to anyone who isn't born here, and a person born here who is subject to US law is "subject to the jurisdiction." The person's parent may be unauthorized, but the person born here is legal by virtue of birth here. Finally, a lot of the slaves weren't lawfully in the US (they were imported in violation of the Constitution), and their children were still clearly "birthright citizens" under the 14th Amendment. Cole needs to cite some sources for all these arguments, because they are all wrong. Get a law book--this is fantasy.